Cycle courier was a 'worker'

Addison Lee v Gascoigne

The EAT reject an appeal by a courier company against a tribunal decision that one of its cycle couriers was a ‘worker’ entitled to paid holiday.

Background

Mr Gascoigne had been a cycle courier in London for Addison Lee (AL) for 9 years until 2017. In 2015 AL introduced a new contract that expressly referred to Mr Gascoigne as a self-employed contractor. After he stopped working for AL because of back problems, he brought a claim for holiday pay arguing he was a ‘worker’ within the meaning of reg. 2 of the Working Time Regulations 1998 and s. 230(3)(b) of the Employment Rights Act 1996. The definition is as follows:

‘worker’ means an individual who has entered into or works under (or, where the employment has ceased, worked under)

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual

Such workers are often called ‘limb (b) workers’. The claim is effectively a test case for about 4,000 other couriers working for AL. As with the Uber case, the drivers are supported by the GMB union.

The evidence showed that Mr Gascoigne had a very variable work pattern and there was no actual requirement for him to log on to AL’s app. Nevertheless, the tribunal upheld his claim and ordered AL to pay him holiday pay. It highlighted the ‘symbiotic relationship’ between AL and its drivers: once they’d logged into the AL platform, the commercial reality was that they had to accept jobs. The amended 2015 contract did not reflect the true relationship between the parties. AL appealed.

EAT decision

The EAT dismissed the appeal.

AL argued that the tribunal shouldn’t have held that there was sufficient ‘mutuality of obligation’ in that the choice of when to work, or when not to work, was inconsistent with being a worker. This found no favour with the EAT. The tribunal had correctly concluded that, from the time Mr Gascoigne logged in, both parties expected that he was available for work, would be provided with it and that he would carry it out as directed by his controller. While ‘expectations’ are not the same as contractual obligations, past cases have made it clear that the established practice and expectations of parties to workplace relationships can, over time, crystallise into legal obligations and that is what the tribunal found had happened in this case. That Mr Gascoigne was entitled to log off was not inconsistent with the obligation to accept work when logged on.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0289_17_1105.html

Comment

This decision demonstrates, again, that tribunals will look behind any label attached by the employer and examine the reality of the situation. Is there also an argument to be made that the current state of the law is actually adequate to deal with these ‘gig economy’ cases and that perhaps greater clarity as suggested by the Taylor Review is not needed?

It’s not known whether AL will appeal. The Uber appeal is due to be heard at the end of October. However, CitySprint v Dewhurst due to be heard in November 2018 has been withdrawn.